Some of these posts are prompted by the puzzling events which occur when operating a business, especially one with high stakes, with litigious people, and the stressors of succeeding when facing tremendous pressure and challenges. I recently met with an attorney who asked me to meet with him about a case and ultimately requested a proposal. As I always do, I prepared and sent the proposal as promptly as possible and then made a follow up call to find out if he had any questions about my proposal. Many times, the next step is a conversation with the other attorneys involved in the case, or in some cases, particularly on commercial cases, with the parties or the decision makers involved in the case. In this instance, the attorney involved in the case informed me that his boss had instructed him to not send the proposal to the client and to forget the idea of conducting mock jury research. While I am certainly not privy to every aspect of the case, and perhaps the internal politics, I cannot figure out why the lead attorney would not submit the proposal to the client. It was not a matter of money – the client has paid tens of thousands of dollars to the attorneys on the case. It was not a competitive, comparison issue. It was simply “We don’t want to show it to him.” That is, “period.” The case clearly warranted a mock jury study. I provided 2 research/cost options. Thus, I cannot imagine how there would have been any harm in showing the proposal to the client, then letting the client decide. That is “normal” – that is what happens all the time. I know the attorney who requested the proposal well enough to know the lawyers involved have the requisite trial skills – a point I make because we have had clients who were reluctant to demonstrate their inadequate trial skills to their unsuspecting clients. (We have also had end clients hire us to ensure their attorneys were up to par.) But, to not let a client make a decision, or know this option was available to them to improve the chances of a successful outcome, is a brain stumper. I cannot comprehend the downside and I can easily foresee such an omission coming back to haunt everyone one day – in various ways. Letting the client decide would protect the attorney in so many ways and, the reality is that mock jury research is often a “CYA” expense. (It is, of course, much more than that, and it is for me to help the attorney explain that to the client.) But, to not open that discussion will remain incomprehensible, and I wonder if it is malpractice. Hopefully this outlier will not recur again!
Just when David and I think we have “been there,” “done that,” or “heard everything,” a new client dilemma surfaces. Never, in all the years (almost 3 decades, in fact!) I have worked as a trial/jury consultant have I known about an attorney who was a prospective client, after requesting both a meeting and detailed written proposal for research and consulting services, decide it was in his/her client’s best interests not to reveal a proposal had been made that would, with follow through, help the client in numerous and important ways. Having our proposals shared with, then rejected by, the end client (defined as the plaintiff or defendant in the case, that is, the person or corporation paying for our work) happens on a regular basis. There are many reasons for clients’ rejections of our proposals, including: they do not want to spend more money on their litigation; they do not understand (because their attorneys cannot explain) the benefit of hiring us; they prefer to work with one of our competitors; etc. As frustratingly disappointing as this type of rejection is, the unthinkable audacity of an attorney deciding, unilaterally, not to disclose the existence of something that will help his/her client is something I never considered until it happened to David and me. I am amazed by these attorneys’ over confidence and their apparent belief they know their client is better off not knowing about Magnus or the tremendous benefit working with us would provide. It is not possible, even for me, as a psychologist, to predict what people will do with 100% accuracy, or to read people’s minds, or to make decisions that bind, permanently, other people on a course of action. I wonder what will happen if these less than stellar attorneys lose the case? Will their client ever find out there was a way the case might have been improved, but this was never revealed? What are the limits of legal malpractice and is failing to inform one’s client of all options available to them in the litigation process malpractice? I wonder.